Citation Nr: 1528493
Decision Date: 07/02/15 Archive Date: 07/15/15
DOCKET NO. 13-04 331 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUES
1. Entitlement to a total disability rating based on individual unemployability (TDIU).
2. Entitlement to service connection for xerosis/actinic keratos/angioma, claimed as skin damage due to environmental hazards.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The Veteran served on active duty from August 1967 to August 1970, and from September 2001 to September 2003.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the RO that denied entitlement to a TDIU. The Veteran timely appealed. This is the only issue that has been perfected on appeal.
In June 2013, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO.
Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file.
The issue of service connection for xerosis/actinic keratos/angioma, claimed as skin damage due to environmental hazards, is addressed in the REMAND portion of the decision below; and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran has not worked full-time since 2006; he reportedly has completed four years of college, plus additional technical training, and earned a bachelor's degree; he last worked as a security guard.
2. Throughout the rating period, service connection is in effect for post-traumatic stress disorder (PTSD), rated as 50 percent disabling; for bilateral hearing loss, rated as 30 percent disabling; for right knee instability, rated as 10 percent disabling; and for degenerative joint disease of the right knee, rated as 10 percent disabling. The combined disability rating is 70 percent.
3. The Veteran's service-connected disabilities are shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment.
CONCLUSIONS OF LAW
The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).
A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through a March 2009 letter, the RO notified the Veteran of elements of a TDIU and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim.
In the March 2009 letter, the RO specifically notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran specifically waived RO consideration of additional evidence submitted in June 2013; hence, no re-adjudication followed and no supplemental statement of the case (SSOC) was issued.
There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.
Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2).
II. TDIU
Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).
In this case, the Veteran has completed four years of college education; and had additional technical training as an aircraft mechanic and flight engineer. He earned a bachelor's degree. He reportedly worked as a flight engineer full-time until 2006. He later worked as a security guard on a part-time basis or on-call from 2007 to 2009.
He filed a claim for a TDIU in March 2009.
Throughout the rating period in this appeal, service connection is in effect for PTSD, rated as 50 percent disabling; for bilateral hearing loss, rated as 30 percent disabling; for right knee instability, rated as 10 percent disabling; and for degenerative joint disease of the right knee, rated as 10 percent disabling. The combined disability rating is 70 percent. As such, in this case, the Veteran meets the threshold percentage requirements for consideration of a TDIU. See, e.g., Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011).
The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable.
The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363.
Records in the claims file reflect that the Veteran had not worked full time since December 2006. At that time he reportedly had difficulty working for, with, and around other people. He described having problems of anger, concentration, remembering, and becoming tired very easily. He later obtained employment on an "on call" basis in February 2007, and reportedly was able to perform job tasks because he worked by himself. He then had problems performing job requirements involving sitting [sic], standing, walking, and climbing; and reportedly had problems because the job brought back memories of the past. In March 2009, the Veteran questioned how much longer he would be able to continue the job. He reportedly took numerous medications, and was working the job because no other jobs were available.
The report of a September 2007 VA PTSD examination reflects that the Veteran had become increasingly isolated and withdrawn; and that he did not like to be around people. He was not able to maintain positive and effective relationships even with his immediate family.
In March 2009, VA received a December 2008 medical statement from the Veteran's treating physician, Wayne E. Campbell, M.D. Dr. Campbell noted that the Veteran suffered from PTSD, decreased hearing, and had continuing problems with his right knee and right leg. Dr. Campbell opined that, due to severe problems with PTSD, the Veteran was totally and permanently disabled for gainful employment.
In May 2009, the Veteran's employer at the time indicated that the Veteran was currently employed on a part-time or "on call" basis.
The report of a February 2010 VA (contract) independent living assessment reveals that the Veteran still grieved over the loss of his wife in December 2009. His work history reflects that, since leaving his federal civil service job, the Veteran worked at a coffee shop in supply for one year; and then took an "on call" security guard job. He felt unable to work anymore; and when jobs were offered, he refused the work. The Veteran also reported difficulty with mobility due to his right knee and back pain, but that he did walk independently and unassisted. He reported that work as a security guard was becoming too difficult because of the amount of walking required. The Veteran also reported occasional socialization, which had improved since he attended a PTSD treatment group.
In March 2010, a vocational rehabilitation counselor indicated that the Veteran had a serious employment handicap, which had not been overcome by education or employment experience.
In January 2011, the Veteran's former employer stated that he had noticed that the Veteran would not accept as many work hours in 2008 as he used to, and he inquired of the Veteran's health. In 2009, the Veteran reported that his problems were getting worse, and that he might have to terminate his employment due to his service-connected disabilities. The former employer agreed with the Veteran.
Following examination in February 2012, a VA examiner opined that the Veteran's symptoms of PTSD did not appear to eliminate his current capacity for physical or sedentary employment. With regard to the Veteran's right knee disabilities, another VA examiner opined in February 2012 that the Veteran was capable of sedentary to light duty employment, if he so chose. With regard to the Veteran's hearing loss, another VA examiner opined in February 2012 that the Veteran's hearing loss alone would not render him unable to secure or follow a substantially gainful occupation. His hearing loss may limit the types of occupation he could hold; and that the Veteran may experience difficulty hearing sounds and understanding speech, especially in the presence of background noise, without visual cues.
In March 2012, the Veteran's former employer noted that the Veteran last worked as a security guard "on call" in September 2010. The former employer also noted that the Veteran earned approximately $14,000 in 2009, and that the Veteran earned approximately $3,832 in 2010.
The Veteran has asserted that he is unemployable due to his service-connected disabilities. To this extent, his statement is of some probative value. Significantly, the Board finds that the Veteran's mental health complaints have been corroborated by Dr. Campbell in 2009.
The Board also finds Dr. Campbell's opinion in 2009, that the Veteran was totally and permanently disabled for gainful employable due to PTSD, to be probative. Two retired military officers, who had each worked with the Veteran for several years, also noted in 2009 that the Veteran became angry and aggressive on numerous occasions when he worked for and with other people.
While VA examiners in February 2012 appear to indicate that the Veteran could perform some marginal employment, none of the examiners discussed whether functional impairment of the service-connected PTSD combined with the Veteran's physical limitations, precluded employment.
Under these circumstances, and resolving doubt in the Veteran's favor, the Board concludes that the Veteran's lay assertions combined with evidence of significant physical limitations, social dysfunction, and the opinion by Dr. Campbell that the Veteran's PTSD caused significant functional impairment, strongly suggest that the Veteran is unable to obtain or maintain gainful employment. In addition, VA determined that Vocational Rehabilitation was not reasonably feasible due to the severity of his PTSD which was severe and caused periods of frustration, reduced concentration, focus and hypervigilance. His condition was noted to be exacerbated by crowds, stress and anxiety and caused the reduced ability to deal with others, poor social interactions, depression and withdrawal. The Veteran's orthopedic conditions restricted his ability to run, jump, stand, crawl and stoop. He also could not sit or stand for prolonged periods. This evidence is also probative and supports the finding that the Veteran would not be able to obtain or retain substantially gainful employment as a result of his service-connected disabilities when taking into consideration his work experience as a security guard and in supply. Accordingly, TDIU is granted. 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits.
REMAND
Xerosis/Actinic Keratos/Angioma
In September 2007, the RO denied service connection for xerosis/actinic keratos/angioma, claimed as skin damage due to environmental hazards. Correspondence submitted by the Veteran the following month in October 2007 has been accepted by the Board as a notice of disagreement (NOD) with the denial of service connection.
The RO has not resolved the notice of disagreement to the Veteran's satisfaction, nor has it issued a statement of the case concerning the denial of service connection for xerosis/actinic keratos/angioma. The Board is required to remand the claim for the issuance of such statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Issue a SOC with regard to the matter of denying service connection for xerosis/actinic keratos/angioma, claimed as skin damage due to environmental hazards.
2. If, and only if, a substantive appeal is timely filed, the issue should be certified to the Board.
The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs